How we do investigations at OPG

We are often asked about how and why we do safeguarding investigations at OPG. This is completely understandable as we hear about elder abuse and fraud cases frequently in the news.

To help explain how and when we do investigations, I need to briefly explain the legal framework we follow. Our ability to investigate concerns about lasting/enduring powers of attorney and deputyships comes from the Mental Capacity Act (MCA) 2005.

The central assumption of the MCA is that people can make decisions for themselves. If they can’t, then they should be supported to make decisions by themselves. As a last resort, someone else can make decisions for them in the least restrictive way if they have the appropriate legal authority.

Mental capacity can vary and it is important not to label people as not having capacity to make any decision when they are able to make some choices for themselves. Everything we do at OPG must balance championing an individual’s right to autonomy while protecting adults at risk from abuse.

Our safeguarding role

We take our safeguarding role very seriously. The Public Guardian is authorised to investigate allegations of abuse by court appointed deputies and attorneys who are acting under a registered lasting/enduring power of attorney or court order. Anyone who has concerns about a deputy or attorney can report them to us. We will carry out an investigation if there are grounds to suggest that the best interests of the person at risk are not being met.

When we begin an investigation, one of the first things we try to do is assess the individual’s mental capacity – we should not be acting on a case where someone can act for themselves. This would not be empowering the individual and would contradict the MCA. We need to balance treating all concerns seriously, with people’s right to a private and family life, to ensure that our investigations are proportionate. Every case unique and is decided on its own merits.

We often get asked about why there has been year on year increases in the number of investigations we do. There are a couple of reasons for this:

Increasing numbers of powers of attorney

As the number of registered powers of attorney and deputyship orders has increased over time, so has the number of investigations. For example, in 2018/19 we did 2,883 investigations, compared to 1,871 in the previous year. On the face of it, it looks like a big increase.

However, when you consider at 31 March 2019 we had 3,906,536 registered powers of attorney and deputyship orders, the number of investigations we carried out was only 0.07% of the total, and it was only 0.06% of the total the year before.

Continuous improvement of our procedures

The way we investigate concerns has changed considerably over the years. When an individual raised a concern, we used to request significant amounts of information before we would investigate. This was often difficult for the concern raiser to provide to us. All that is required for a concern to be investigated by OPG is:

we have enough details to confirm the person at risk has a registered power of attorney or deputyship order

the concern relates to the powers the attorney/deputy holds under their registered power

the concern is against the attorney/deputy’s behaviour, not that of a third party

the concern occurred whilst the attorney or deputy was acting in their capacity as attorney/deputy for the person at risk

the concern raiser believes that the person at risk did not have capacity to make the decision at the time it was made and/or believes that the person at risk was coerced.

We will investigate any case where we have jurisdiction to act.

Carrying out an investigation does not necessarily mean there has been fraud or abuse. Often the outcome of investigations shows there is nothing wrong happening. In some instances, an investigation may not result in any action being taken against the attorney/deputy but may result in providing guidance to the donor or the attorney/deputy.

In other instances, mediation between the attorney/deputy and others interested in the care of the person at risk may be appropriate.

Working collaboratively to support adults at risk

But this doesn’t mean we’re complacent. We refer concerns to other authorities, for example social services or the police, where we’re not able to legally act. We’re also receiving more referrals from other agencies.

Our safeguarding strategy emphasises our commitment to work in cooperation with other agencies who have a duty to protect people at risk of abuse or neglect.

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6 comments

Comment byconcerned family memberposted onon 19 June 2019

Thank you Ria for an informative post. I have a few observations and questions.

With regard to safeguarding, I think it is really important that people are aware that you undertake no routine accountability checks on those individuals you have registered as POA to ensure a vulnerable individual's assets are not misappropriated on a day to day basis. If this is incorrect I would be pleased to be corrected.

You have stated you will investigate any case where 'there is justification to act', could you define 'justification' please and whether the decision to investigate is ultimately discretionary?

With regard to what is required for a concern to be investigated. Once an individual has POA, data protection laws prevent any other person such as a concerned family member from obtaining any evidence such as bank statements or relevant financial detail to provide to you as evidence. Obtaining this information should be central to your remit and not that of concerned third parties with limited powers.

You are currently conducting an investigation on the individual with POA for my mother who has dementia and is now residing in a state run care home until this matter is resolved. I have not received any communication from OPG for 4 months and have not been a successful recipient of your call back facility.

Judging by the 0.07% investigation figure you have provided, I can only conclude that the figure for withdrawing authority from inappropriate POAs to be even lower. It is with genuine regret that I conclude such safeguarding issues are better handled by the police authority.

Based on my own experiences, I feel that your 'safeguarding' strategy is a paper tiger and seriously flawed due to the limited powers afforded to you via Westminster.

Jurisdiction to act means that:
• we have enough details to confirm the person at risk has a registered power of attorney or deputyship order
• the concern relates to the powers the attorney/deputy holds under their registered power
• the concern is against the attorney/deputy’s behaviour, not that of a third party
• the concern occurred whilst the attorney or deputy was acting in their capacity as attorney/deputy for the person at risk
• the concern raiser believes that the person at risk did not have capacity to make the decision at the time it was made and/or believes that the person at risk was coerced.

Discretionary – we will always make enquiries – but sometimes those enquiries mean a full ‘investigation’ is not necessary – e.g. if social services can resolve a concern for us immediately, we wouldn’t proceed to a full investigation.

Very interesting reading. But you try finding out any information from OPG which is impossible. We have asked many times why we were investigated in the first place and OPG refuse to answer. We want to know the allegations made at the beginning or information received BUT every time the response is negative from OPG. What are you hiding ?

We do not routinely provide updates during an investigation. We will make enquiries with various sources and may return to an individual if it’s necessary to do so. Our aim is to obtain as much information as quickly as we can. It is important that we protect the personal data of third parties involved in an investigation, such as attorneys, deputies, family members and the concern raiser. This means that the amount of information we can disclose will be largely limited to what they already know about the situation, along with a summary of the investigation findings.

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